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Homes of Hope, Inc. v. Eastampton Township Land Use Planning Board

409 N.J. Super. 330, 976 A.2d 1128 (App. Div. 2009)

ZONING; MOUNT LAUREL — Even though a municipality meets its fair share obligation to provide affordable housing, the placement of affordable housing within a municipality still constitutes an inherently beneficial use because the Mount Laurel doctrine was not intended to benefit solely a municipality, but rather the entire surrounding area.

A nonprofit provider of affordable housing filed a variance application to build eight units. Its property was located within an R-M Residential Medium Density zone which permitted single family dwellings, but not multi-family dwellings. Therefore, the owner sought a variance under Section 70d of the Municipal Land Use Law (MLUL). In order to obtain a “d” variance, one must satisfy both the positive and negative criteria. The positive criteria can be satisfied in one of two ways: (a) by showing the proposed use is inherently beneficial; or (b) by demonstrating that the proposed use is particularly suited for that location. The negative criteria require the applicant to prove that the variance would not result in a substantial detriment to the public good and would not substantially impair the purpose of the zoning ordinance. Here, the owner argued that providing affordable housing was an inherently beneficial use that satisfies the positive criteria. The municipal planning board disagreed, claiming that the municipality had already satisfied its affordable housing obligations as required by the Council on Affordable Housing (COAH). In fact, the planning board noted that it had a surplus of twenty-one affordable housing units toward its fair share obligations. Therefore, it found that the municipality, having already satisfied it COAH obligations, made the owner’s proposed use to add additional affordable housing not inherently beneficial. The planning board then elected to evaluate the positive criteria based on whether the property was particularly suited for use as an eight-unit apartment building. After doing so, it denied the owner’s variance application.

The owner sued and the lower court reversed. It found that the Mount Laurel affordable housing decisions were not limited to meeting affordable housing needs within the boundaries of each municipality. Rather, the principles of Mount Laurel were intended to contribute to the needs of the entire state. Therefore, the lower court found that even though this particular municipality might have met its affordable housing obligations, additional affordable housing remained an inherently beneficial use. It ordered the matter to be reheard so that the owner could present its application to show that its property met the inherently beneficial use criteria.

On appeal by the planning board, the Appellate Division affirmed. The Court rejected the planning board’s argument that once a municipality meets its fair share obligation to provide affordable housing, the municipality no longer had a need for affordable housing, and therefore it no longer constituted an inherently beneficial use to meet the positive criteria for a variance. The Court noted that a municipality’s satisfaction of its COAH obligations does not change the site-specific analysis needed for a “d” variance. Compliance with COAH regulation protects a municipality from litigation, but it does not impact the public policy of fostering and promoting the general welfare by constructing affordable housing. Once a municipality satisfies its COAH obligations, it does not mean that the municipality has reached its ceiling for providing affordable housing. Affordable housing is still an inherently beneficial use to promote the general welfare. Thus, the Court remanded the matter to the planning board to evaluate the application in light of the property’s inherently beneficial use.

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